Manhattan District. Atty. Alvin Bragg’s indictment of former President Trump takes an open-ended approach to the charges, which some critics of the unprecedented prosecution say are weak. What the detractors have overlooked are the substantial and unanticipated legal and factual strengths of the case Bragg outlines.
A key question before Tuesday’s indictment was unsealed was how Bragg would add to the easily proven felony charges of falsifying business records. Under New York law, these offenses become felonies only if they are in furtherance of another crime. There were many theories about what second offense Bragg would claim, and most of the possibilities had notable flaws.
Bragg’s response was basically: “I’ll tell you later.” He took advantage of the state law’s wording, which requires a misdemeanor to be committed only for a “felony,” to buy himself maximum time and flexibility.
Bragg may have to drop his offense, perhaps in response to an expected defense motion on the “features,” meaning the drafting of a Delphian indictment to allow the Trump team to prepare an appropriate defense.
On the other hand, the prosecutor can no the second offense should be mentioned. Jury instructions on falsifying business records state that it is a crime if the defendant acted “with intent to defraud, which included the intent to commit another crime or to aid or conceal its commission.” Therefore, it is not clear that they require juries to even agree on what constitutes an aggravated offense.
But Bragg also added a potent secondary offense this week that exceeded many observers’ expectations. It is clear from the fact that by making his lawyer Michael Cohen “full” for the money he paid Stormy Daniels, Trump included enough to reimburse Cohen for the taxes he should have paid on the “income” ie. a fake legal retainer that disguised hush money.
It’s not clear whether Cohen actually declared and paid taxes on the reimbursement, or whether the Trump Organization claimed it as a business expense. Bragg’s team’s insight is that it doesn’t matter; the language making falsifying business records a crime only requires “an intent to commit another crime or to aid or conceal the commission thereof.”
It deliberately covers what lawyers call “unrelated” crimes. The statute would obviously be satisfied to include money intended to commit or conceal another crime, namely, a false tax return, whether or not that crime occurred.
Importantly, this theory can circumvent the legal questions inherent in claims that the second offense was a state or federal campaign finance violation.
The allegation of campaign finance violations would also raise a factual dispute over whether the hush money was actually paid to boost Trump’s electoral prospects. Trump’s team continues to suggest that the real purpose of the payment was to “prevent something from getting out [that was] false, but embarrassing for him, for his family, for his young son,” as Trump’s attorney Joe Tacopina put it.
It is far from a theory to be sure. the idea that Trump might not be a faithful spouse wouldn’t come as a shock to most people, let alone those who know him best. But in a situation where the prosecution has to prove its case beyond reasonable doubt, the claim that he was trying to protect his family’s feelings cannot be completely ignored.
Here’s where it’s important that Bragg argued for a whole course of conduct—not just Daniels’ payment, but a broader “incentive scheme.” [Trump’s] election prospects,” drowning out other potentially damaging stories. Bragg emphasized that much in his free-flowing public statements this week, suggesting that David Pecker, the former CEO of the National Enquirer’s parent company, would be a critical witness.
Bragg’s “statement of facts” provided a piece of new information that blows the Trump team’s alternative explanation for the payment out of the water. Trump is said to have told Cohen that “if they can delay the payment [to Daniels] until after the election they could avoid paying at all, because at that point it wouldn’t matter if the story got out.”
If jurors credit that statement, it would eliminate the argument that Trump was only trying to hide the indecent facts from Melania. In fact, it proves that Trump has succeeded in broadcasting the affair to his family and the rest of the world once his election is secured.
So even as Bragg hedged his bets on the bonehead charge, his statement of facts and public comments reveal a clear path to a criminal conviction; ) and prevent such a revelation that would harm his campaign on the eve of the elections.
Harry Litman is the host The Talking Feder Podcast. @harrylitman: